Plaintiffs
Robert V. Gomez, II, Kaitlyn Ann Wille, and Jennifer Price
assert that they were injured when Gomez poured fuel from a
Blitz portable gasoline container onto a mostly extinguished
fire and the container exploded. Plaintiffs contend that the
gas container was defective because it did not have a flame
arrestor. The gas container was manufactured by Blitz U.S.A.,
which declared bankruptcy in 2011. Plaintiffs brought this
action against Defendants Harbor Freight Tools USA, Inc.,
Central Purchasing, LLC, and HFT Holdings, Inc.
(collectively, “Harbor Freight”) because they
assert that the gas container was purchased from a Harbor
Freight store. Harbor Freight seeks summary judgment, arguing
that this assertion is implausible because Plaintiffs cannot
point to any evidence, either in Harbor Freight's records
or testimony from Harbor Freight employees, that Harbor
Freight ever sold Blitz gas containers. But Plaintiffs did
point to the testimony of Gomez's mother, Ronda Baldree,
who testified unequivocally that she bought the gas container
at the Harbor Freight store in Valdosta, Georgia and loaned
it to her son on the day of the explosion. As discussed in
more detail below, this evidence creates a genuine fact
dispute on whether the gas container was purchased from a
Harbor Freight store. The Court denies Harbor Freight's
summary judgment motion (ECF No. 45) on this ground. The
Court also denies Harbor Freight's summary judgment
motion on Gomez's implied warranty claim but grants
Harbor Freight's motion as to Plaintiffs' post-sale
failure to warn claims and the implied warranty claims of
Wille and Price.

SUMMARY
JUDGMENT STANDARD

Summary
judgment may be granted only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In determining whether a genuine
dispute of material fact exists to defeat a motion
for summary judgment, the evidence is viewed in the light
most favorable to the party opposing summary judgment,
drawing all justifiable inferences in the opposing
party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). A fact is material if it
is relevant or necessary to the outcome of the suit.
Id. at 248. A factual dispute is genuine if
the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Id.

FACTUAL
BACKGROUND

Viewed
in the light most favorable to Plaintiffs, the record reveals
the following facts. In 2012, Ronda Baldree worked for Mackey
Lumber in Valdosta, Georgia. Baldree Dep. 23:1-5, 24:17-19,
ECF No. 50-1. Mackey Lumber is next door to a Harbor Freight
store. Id. at 76:2-7. One afternoon in September
2012, Baldree asked a colleague if there were any gas
containers in stock at Mackey Lumber, but there were none.
Id. at 78:19-24. The colleague said that Harbor
Freight probably carried them, so Baldree took a break from
her work and walked next door to Harbor Freight, where she
found a “whole friggin' wall” of gas
containers. Id. at 78:3-8. She picked one up, paid
for it, and went back to work. Id. at 78:9-10. She
did not keep the receipt.

Baldree
lives next door to her son, Plaintiff Bobby Gomez. On March
6, 2015, Gomez asked Baldree if he could use her gas
container because he was having a get-together and
“wanted to get some diesel because the firewood was
soaked and it was wet.” Id. at 58:1-5, 21-23.
Baldree said yes, so Gomez went to her garage, got the gas
container, and used it. Id. The gas container Gomez
borrowed was the one Baldree bought from Harbor Freight.
Id. at 75:22-76:4.

Harbor
Freight disputes that the gas container involved in the March
2015 incident was purchased at one of its stores. In support
of this argument, Harbor Freight presented testimony from its
employees that Harbor Freight did not sell Blitz plastic gas
containers, as well as sales records for the Valdosta store
that do not list any sales of Blitz brand gas containers
between 2012 and 2015. Harbor Freight also points out that
Plaintiffs abandoned their original theory on how the gas
container came to be sold at Harbor Freight and have not
proffered a new theory. Plaintiffs initially alleged that
Scepter Holdings, Inc., Scepter Canada, Inc., Scepter
Manufacturing, LLC, (“Scepter”) and The Moore
Company (“Moore”) distributed the gas container
to Harbor Freight. After discovery closed and Scepter and
Moore filed summary judgment motions, Plaintiffs voluntarily
dismissed their claims against them with prejudice.
Plaintiffs now acknowledge that the gas container was not
sourced through Scepter or Moore, and they admit that
“[t]he question of exactly how Harbor Freight came to
have Blitz gas cans in stock and on the shelves of its store
remains to be answered.” Pls.' Resp. to Defs.'
Mot. for Summ. J. 11, ECF No. 50. They argue that “[i]t
is entirely plausible that the [gas container] was sold to
some other distributor” and got to Harbor Freight
through that distributor, but they have not discovered any
evidence to trace the source of the gas container through
another distributor. Id. at 14.

DISCUSSION

Plaintiffs
brought claims against Harbor Freight for negligence,
pre-sale failure to warn, post-sale failure to warn, and
breach of implied warranty. Harbor Freight seeks summary
judgment on all claims because it contends that Plaintiffs
cannot establish that the gas container was purchased from a
Harbor Freight store. In the alternative, Harbor Freight
seeks summary judgment on the warranty claims due to lack of
privity and the post-sale failure to warn claim because
Georgia law does not impose such a duty on product sellers.

I.
Is There a Genuine Fact Dispute on Where the Gas Container
was Purchased?

A. Can
Plaintiffs Rely on Baldree's Testimony?

Harbor
Freight argues that the Court cannot rely on Baldree's
testimony to establish that the gas container was purchased
at Harbor Freight. First, Harbor Freight asserts that a
plaintiff may not rely on “self-serving
testimony” to oppose summary judgment. Harbor Freight
is wrong. In this circuit, “a litigant's
self-serving statements based on personal knowledge or
observation can defeat summary judgment.” United
States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018);
id. at 858-59 (“A non-conclusory affidavit
which complies with Rule 56 can create a genuine dispute
concerning an issue of material fact, even if it is
self-serving and/or uncorroborated.”). Baldree's
testimony is based on her personal knowledge, so the fact
that it is self-serving does not mean that the Court must
disregard it.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Second,
Harbor Freight discounts Baldree&#39;s testimony as
&ldquo;merely colorable&rdquo; and &ldquo;conclusory.&rdquo;
Defs.&#39; Br. in Supp. of Mot. for Summ. J. 9, ECF No. 45-1
(citing Brown v. City of Clewiston, 848 F.2d 1534,
1540 (11th Cir. 1988) and Peppers v. Coates, 887
F.2d 1493, 1498 (11th Cir. 1989)). It is not. In
Brown, the question was whether the plaintiff had
submitted sufficient evidence to show that a city&#39;s
official decisionmakers sanctioned the use of deadly force
under constitutionally unreasonable circumstances and thereby
repudiated the city&#39;s official policy manual on deadly
force. Brown, 848 F.2d at 1540. The Eleventh Circuit
doubted that the plaintiff had presented any
evidence to establish that the city&#39;s policy was not, in
fact, the policy but stated that even if he had, it was
&ldquo;merely colorable&rdquo; because it was nothing more
than a scintilla of evidence that was not significantly
probative on this point and thus could not defeat summary
judgment. Id. at 1540 & n.12. In
Peppers, the Eleventh Circuit emphasized that a
party cannot survive summary judgment if his “response
consists of nothing more than a repetition ...

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